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Posted by permission. Copyright by New York State Education Department, Office of the Professions. Retrieved from http://www.op.nysed.gov/prof/psych/psychcease.htm.
Those parts of California Law most relevant to the topics of law and dual relationships, sexual relationships and boundaries in psychotherapy and counseling are in the following sections of the Business and Professional Code of California.
Advisory Notice: The following advisory constitutes a general discussion of the issues that may arise when a licensee ceases to practice. The discussion is intended to alert practitioners to questions and concerns that they may want to consider with their legal counsel, and is not to be construed as a directive or other requirement to take any particular action. The Advisory cannot be used as the basis for a charge of professional misconduct. The statements are generally based upon statutory and regulatory provisions relating to the practice of psychology, but are not legal interpretations of any of these provisions. The citations to the provisions are included to add clarity to the discussion. Practitioners are advised that if they decide to pursue any course of action based upon this discussion, private counsel should be consulted. There are many factors to be considered in designing a plan to deal with the termination of a practice. Among these factors is the mode of practice, i.e., – sole practitioner, partnership, professional service corporations, professional limited liability company, professional limited liability partnership. The legal structures involved in these practice forms may have a strong influence on the design of any practice termination plan. Moreover, there may be many issues germane to individual practitioners that should be considered. It is important, therefore, that private counsel be consulted in these matters since there may be legal issues beyond those directly inherent in the practice of psychology that should be considered.
A psychologist’s professional practice may cease due toillness, disability, retirement, death, or as the result of adisciplinary action. This may occur either gradually or abruptly andmay have profound ramifications. There are many legal, ethical,clinical and personal issues for the practicing psychologist toconsider. An overriding issue is that psychologists have anobligation to their patients/clients to have an organized plan toinsure that the termination of services does not createpatient/client harm. An organized, comprehensive plan should ensurethat the needs and rights of patients/clients are recognized andprotected, which may be a fundamental aspect of competentservice.
While psychologists frequently turn to the ethical codes ofprofessional associations or consider other standards of goodpractice when planning for the termination of practice, they may notrecognize the need to incorporate applicable laws, Rules, orregulations of professional licensing in those plans. The samegeneral laws, Rules and regulations apply when practice isterminated, although differently in each situation. In preparing fora temporary or permanent cessation of a professional practice(including planning for a ‘what if’ scenario), psychologistsshould be concerned about patient confidentiality, the maintenanceand disposition of patient records, patient abandonment, andlimitations on the sale of a practice.
§29.1(b)(8) Revealing personally identifiable facts, data, orinformation obtained in a professional capacity without the priorconsent of the patient or client, except as authorized or required bylaw. *
No personally identifiable information about a patient/client maybe revealed to anyone without the patient/client’s consent unlessrequired by other laws or regulations. Psychologists are obligated tomaintain the communications of their patients/clients asconfidential. Psychologists should be aware of the laws regardingpatient confidentiality when authorizing individuals to act on theirbehalf in maintaining patient/client records, collecting unpaidfunds, and responding to inquiries about the patient/clients.
§29.2(a)(3) Failing to maintain a record for each patientwhich accurately reflects the evaluation and treatment of thepatient. Unless otherwise provided by law, all patient records mustbe retained for at least six years. Obstetrical records and recordsof minor patients must be retained for at least six years, and untilone year after the minor patient reaches the age of 21 years.”*
Patient/client records must be maintained for at least six yearsand obstetrical records and records of minor patients must beretained for at least six years and until one year after the minorpatient reaches the age of 21 years. This protects the rights ofpatient/clients, ensuring their access to information for treatment,legal or personal needs, and also protects practitioners in case ofcharges of professional misconduct or lawsuits against thepractitioner’s estate.
§29.1(8) Revealing personally identifiable facts, data, orinformation obtained in a professional capacity without the priorconsent of the patient or client, except as authorized or required bylaw. *
Patients/clients possess the right to have all identifyingpersonal information maintained as confidential. This mandate tomaintain confidentiality applies to the psychologist who isresponsible for assuring that all persons engaged or employed withinthe professional business practice maintains information needed bythem in their work as confidential. For example, a secretary who doesbilling could have access to the name, address and other demographicinformation of a patient, but the psychologist would be responsiblefor preventing the revelation of this information by the employee.Personally identifying information and the contents of records shouldnot be given to anyone outside the psychology practice without theconsent of the patient/client, except as otherwise required bylaw.
The executor of an estate acts to carry out the wishes of thedeceased psychologist and may implement or carry out thepsychologist’s directions regarding the patient/client. This caninclude creating a location where patient/client records can bestored, notifying patients/clients of the death of the psychologistand the location of the records, seeking information frompatients/clients regarding the disposition of records, and obtainingthe consent of patients/clients to transfer records. To facilitatethis process and to make certain that the executor of thepsychologist knows if there are any patients/clients who should notreceive their records without first applying to the Office of RecordAccess of the Department of Health, the psychologists would be wiseto make a notation of this need on the patient’s/client’sfile or to maintain a list of such patients/clients. Section 18 ofthe Public Health Law identifies specific reasons why patients maynot have access to records and provides a means of appeal for thepatients to obtain the records.
Records of patient/clients should not be transferred to otherprofessionals without the consent of the patient/client, both totransfer the record and to permit the other practitioner to read therecord. Patient/clients should have the option of receiving a copy oftheir record, having their record transferred to another practitionerof their choice, or leaving their record in storage. If the recordsare stored in the office of another practitioner, the patient/clientshould be notified of the location.
Whether records are transferred to another practitioner, sent tothe patient/client, or stored elsewhere, the estate of thepsychologist may wish to maintain an accessible copy since it ispossible for the estate to be sued after the death of thepsychologist. The record could become the estate’s most importantdefense.
§29.2(a)(1) Abandoning or neglecting a patient or clientunder and in need of immediate professional care, without makingreasonable arrangements for the continuation of such care, orabandoning a professional employment by a group practice, hospital,clinic or other health care facility, without reasonable notice andunder circumstances which seriously impair the delivery ofprofessional care to patients or clients. *
The abrupt cessation of services by psychologists who unexpectedlybecome ill, disabled, or die normally would not be consideredabandonment as it is defined, but appropriate planning for suchevents early in the professional relationship can ensure thatpatient/clients receive the essential services they need when suchemergencies do occur. Psychologists who surrender or lose a licenseas a result of professional disciplinary action should also providepatient/clients with the means to obtain essential professionalservices.
The nature of the professional relationship between psychologistsand patient/clients is commonly identified as “caregiving,”implying that patients/clients may need the psychologist’s directassistance to successfully complete the termination process. Inparticular, patients/clients receiving ongoing psychotherapy requirea process of termination that could take varying periods of time andmay require referrals to other practitioners, depending on individualpatient’s/client’s needs. It would be wise for psychologistswho know that their practice will end within a period of time tobegin a timely termination process to enable patients/clients tocomplete their treatment or to find another treatment provider. Inmany instances, patients/clients will have to rely on the treatingpsychologist to learn about other providers or treatment centers. Inaddition, the plan should include the time necessary to writetreatment summaries or prepare records for transfer to otherpractitioners at the request, and with the consent of thepatient/client. Good and timely termination plans and activities mayprevent complaints of negligence or incompetence.
Illness, injury or death may occur abruptly. To prevent harm topatients/clients and to assist others in implementing a transitionplan, psychologists may want to consider identifying a person whowould have access to names of patients/clients, the means ofcontacting patients/clients, the needs of each patient/client in theevent of an emergency, and the process to follow in responding torequests for records or information about patients/clients. Thoseperson(s) who are expected to implement these actions would need toagree to this arrangement and should know how to access addresses,records, and other files. Such persons would be acting for thepsychologist and should be made aware of the laws, Rules andregulations regarding confidentiality and the use and release ofrecords, as well as a patient’s/client’s right to accessrecords.
It would also be wise for the psychologist to introduce thepossibility of emergencies affecting the psychologist early in theprofessional relationship so that patient/clients/clients may knowwhat to expect if such an event occurs. If appropriate, consent forthe transfer of the patient/client’s record to another identifiedpsychologist could be obtained at that time.
This commonly is the role of the executor of the estate. Thepsychologist may want to provide information to an executor thatprecautions are needed to assure that personally identifiableinformation about the patient/client is not revealed when collectingfees or debts. If collection agencies are used to collect fees,information regarding the professional relationship of thepsychologist and the patient/client/client should not be revealed tothe agency.
Psychologists who are planning to terminate a practice mayconsider selling the practice. The tangible assets of a practice maybe sold, but the patient’s/client’s names and records may notbe sold. Psychologists who wish to transfer patient/client records toanother practitioner’s care could do so by following therecommended process for making this kind of transfer, which includespatient/client consent for both the release of their name to theother practitioner, as well as consent for the other practitioner toview their records.